|9-35.011||Statutory and Treaty Requirements|
|9-35.012||Prisoner Transfer Determination|
|9-35.013||Processing of Prisoner Transfer Requests|
|9-35.014||Effect of Prisoner Transfer and the Administration of the Transferred Sentence|
|9-35.015||Reconsideration of Prisoner Transfer Requests|
|9-35.016||Consent Verification Hearings|
|9-35.017||Role of the United States Attorneys' Offices in the Transfer Process|
|9-35.018||Limitations on United States Attorneys' Offices Regarding Oral and Written Promises of Transfer During Plea Negotiations|
|9-35.019||Relationship of Prisoner Transfer to Extradition|
|9-35.020||AAG Memorandum Regarding the Transfer Program and the Role of the USAOs|
9-35.010 - Introduction
The International Prisoner Transfer Program began in 1976 after Congress passed enabling legislation (18 U.S.C.§§ 4100 - 4115) and the Federal Government negotiated the first in a series of treaties permitting the transfer of prisoners from the countries in which they had been convicted to their home countries where they will serve the imposed sentence. The United States is now party to twelve bilateral transfer treaties and two multilateral transfer conventions giving it, as of October 2018, transfer treaty relationships with 83 countries and territories. See https://www.justice.gov/criminal-oia/list-participating-countries. These agreements allow the United States: (1) to transfer convicted foreign nationals in state or federal custody back to their home country, where the receiving country assumes responsibility for enforcing the sentence; and (2) to receive the transfer of Americans convicted abroad and to assume responsibility for enforcing the foreign sentence. Transfer can only occur if the pertinent statutory and treaty requirements are satisfied, including receiving the consent of the sentencing country, the receiving country and the prisoner. For information about the initial impetus for the program and its benefits, please contact the International Prisoner Transfer Unit.
Because the United States Attorneys’ Offices are primarily involved in the transfer of foreign nationals from the United States, the focus of this Chapter is on the handling of requests to transfer foreign national prisoners from the United States to foreign countries.
Additional information about the transfer program and its procedures may be found at the IPTU Web site: http://www.justice.gov/criminal/oeo/iptu/.
9-35.011 - Statutory and Treaty Requirements
The United States has entered into 12 bilateral transfer treaties and has acceded to two multilateral transfer conventions, the Council of Europe Convention on the Transfer of Sentenced Persons (the COE Convention) in 1985, and the Inter-American Convention on Serving Criminal Sentences Abroad (the OAS Convention) in 2001. [https://www.justice.gov/criminal-oia/listparticipating countries] The basic requirements and procedures for transfer are set forth in these international agreements and in the enabling statute (18 U.S.C. §§ 4100 – 4115). As set forth in these authorities, the basic eligibility requirements for transfer are:
- the prisoner must be a national or citizen of the country to which he/she wishes to transfer;
- a transfer treaty relationship must exist between the United States and the prisoner’s country;
- the prisoner must be convicted and sentenced;
- the judgment and sentence must be final, meaning that there are no pending appeals or other collateral attacks against the conviction or sentence;
- dual criminality must exist – the offense for which the prisoner is incarcerated must be a crime under the laws of the receiving country;
- in the absence of exceptional circumstances, a minimum period of time (typically 6 months) must be left to serve on the sentence at the time of application; and
- the prisoner, the sentencing country and the receiving country must all consent to the transfer. Depending on the treaty, additional requirements may also be present. For example, the bilateral treaty between the United States and Mexico precludes the transfer of prisoners who are serving sentences for immigration offenses and prisoners who have become “domiciliaries,” of the sentencing country. The U.S.-Mexican treaty defines a domiciliary as a person who has been present in the territory of one country for at least five years with an intent to remain permanently therein.
9-35.012 - Prisoner Transfer Determination
The transfer decision is a discretionary judgment made by the sentencing country and the receiving country. A prisoner does not have a “right” to transfer nor can the sentencing country or receiving country force the prisoner to transfer. Each transfer application submitted to the Department presents a unique set of facts that must be evaluated on its individual merits. To assist it in evaluating the hundreds of transfer applications that it receives each year and to ensure consistency in decision-making, the Department has formulated guidelines that reflect the Department’s views concerning the various factors affecting the transfer decision. These guidelines [https://www.justice.gov/criminal-oia/guidelines-evaluation-transfer-requests-submitted-foreign-nationals] focus on three areas: the likelihood of social rehabilitation of the prisoner; important law enforcement interests and concerns that are implicated by the transfer; and the presence of any compelling humanitarian concerns.
9-35.013 - Processing of Prisoner Transfer Requests
Congress conferred the power to administer the International Prisoner Transfer Program on the Attorney General. See 18 U.S.C. § 4102. The Attorney General delegated the authority to the Assistant Attorney General of the Criminal Division, who—by a memo issued on September 4, 2018— delegated the authority to the Office of International Affairs (OIA). Within OIA, the Director, Deputy Directors, and the Associate Director of the International Prisoner Transfer Unit, have the authority to make the final transfer decision. See 28 C.F.R. § 0.64-2. The International Prisoner Transfer Unit (IPTU), a component of OIA, serves as the central authority for the daily administration of the transfer program. For more information about how the Department processes transfer requests, please contact the International Prisoner Transfer Unit.
9-35.014 - Effect of Prisoner Transfer and the Administration of the Transferred Sentence
When a prisoner is transferred, the responsibility for administering the sentence belongs exclusively to the receiving country. The sentencing country loses jurisdiction over the prisoner’s sentence, and violations of the terms or conditions of the original sentence, including supervised release, cannot be enforced even if the prisoner returns illegally to the United States after satisfying the sentence in the foreign country. The sentencing country, however, retains jurisdiction to modify or vacate the sentence, including the power to grant a pardon or amnesty. Under the COE Convention, the receiving country also has the power to pardon a prisoner or commute his sentence but, to date, this power has been used infrequently.
Under most of the treaties, the receiving country will continue the enforcement of the transferred sentence. Such continued enforcement will be executed under the laws, regulations and procedures of the receiving country, including any provisions for reducing the term of confinement by parole, conditional release, good-time release, or otherwise. In addition, the French and Turkish bilateral treaties and the COE Convention, provide the receiving country with the option of converting the sentence through either a judicial or administrative procedure, into its own sentence. When a sentence is converted, the receiving country substitutes the penalty for a similar offense under its own laws for that of the sentencing country. The receiving country, however, is bound by the sentencing country’s findings of fact insofar as they appear in the judgment. The receiving country may never administer or convert the sentence in such a way that the time the transferred person spends in prison exceeds the full term of the sentence imposed by the sentencing country. Nevertheless, it is possible for a prisoner to spend less time or more time in his home country because of differences in laws regarding applicable prison credits and the availability of different forms of conditional release.
9-35.015 - Reconsideration of Prisoner Transfer Requests
The federal enabling statute does not address whether a decision to deny a transfer request can be reconsidered or whether a denied applicant can reapply for transfer in the future. It is the policy of the Department not to reconsider its decision to deny a transfer request in the absence of significant new information that either removes the obstacle to transfer or presents a compelling circumstance. With respect to whether a denied applicant can reapply for transfer after his application has been denied, it is the general policy of the Department that the applicant must wait for two years from the date of the denial of his transfer request before he can reapply for transfer. Exceptions to this policy may occur if the original impediment to transfer (e.g., a pending appeal or need for the prisoner’s testimony) no longer exists or if a compelling circumstance exists (e.g., extraordinary humanitarian reasons).
9-35.016 - Consent Verification Hearings
If both countries approve the transfer, the next step in the transfer process is to arrange a consent verification hearing (CVH). The CVH, which is conducted by a Federal Magistrate Judge, is mandated by 18 U.S.C. § 4107. Its purpose is to ensure that the prisoner voluntarily consents and understands the consequences of the transfer. A Federal Public Defender represents the prisoner at the hearing. The CVH is required for all transferring prisoners whether they are foreign nationals transferring from the United States back to their home countries or Americans transferring from a foreign country back to the United States. A representative of the USAO is not required to attend the hearing of a foreign national transferring from the United States. However, the USAO in the district where the hearing is being held may be required to prepare the necessary application for a writ of habeas corpus or order to produce the prisoner’s presence at the hearing. For more information about arranging and conducting consent verification hearings, please contact the International Prisoner Transfer Unit.
9-35.017 - Role of the United States Attorneys' Offices in the Transfer Process
There are five areas in which the USAOs could have a role in the transfer process.
First, to ensure a thorough, fair, and principled review of each application, the IPTU collects and evaluates information pertinent from various sources, including input from the prosecutor and law enforcement agencies. One of the initial steps that the IPTU analyst takes when a federal prisoner applies for transfer is to contact the USAO and the investigative agencies responsible for the prosecution of the case. The IPTU sends a form to the USAO and the investigative agencies seeking its views on the transfer. These offices are responsible for furnishing pertinent information and recommendations to the IPTU no later than 14 calendar days from the date of the initial faxed or emailed request. Unless the USAO or law enforcement agency requests additional time to respond to the request, the IPTU will interpret a failure to respond to its information requests as indicating that the USAO or the law enforcement agency is either taking no position on the transfer or has no objection to the transfer request. This policy is intended to assist in avoiding unnecessary delays in processing transfer applications caused by waiting long periods of time for responses.
The IPTU recognizes that the USAOs have a strong interest in the cases they have prosecuted and, as a result, gives considerable weight to the views and recommendations of the USAOs. The IPTU typically asks prosecutors to provide case-specific information, including whether the prisoner is the subject of another criminal investigation, whether the prisoner is expected to be needed to testify in another matter, and whether the prisoner has threatened the safety of a witness. The views of the investigative agency also provide important information in considering whether transfer should be approved. Indeed, sometimes a law enforcement agency may provide information unknown to the USAO, including the involvement of the prisoner in other crimes under investigation. It should be noted, however, that generic and unsubstantiated complaints about the transfer program will not have an impact on the transfer decision.
Second, where a prisoner seeks a guarantee of transfer during plea negotiations, prosecutors should consult JM § 9-35.018 for guidance regarding permissible promises and appropriate language for plea agreements.
Third, transfer issues may arise infrequently in the context of an extradition. Prosecutors should consult JM § 9-35.019 for applicable procedures in those circumstances.
Fourth, the IPTU may seek the assistance of the A fourth area of USAO involvement is assisting the IPTU in obtaining a writ of habeas corpus to move a state or federal prisoner to the courthouse for a consent verification hearing. See JM § 9-35.016 supra. The USAO located in the district of the court holding the hearing is responsible for filing the motions necessary to secure this writ. For federal prisoners, the USAO will be asked to assist in obtaining writs of habeas corpus or orders to produce pursuant to 18 U.S.C. §3621(d) in order to move the prisoner from prison to the consent hearing.
Fifth, prisoners may raise issues implicating the transfer program in litigation. When transfer issues are raised, the USAO should contact the IPTU for assistance.
9-35.018 - Limitations on United States Attorneys' Offices Regarding Oral and Written Promises of Transfer During Plea Negotiations
Congress vested the authority to make transfer determinations in the Attorney General or his designee. As a result, no other government official has the power to make the transfer decision or to promise that transfer will occur. 18 U.S.C. § 4102. Consequently, USAOs must take great care not to promise or represent, either orally or in writing, that the United States will approve a particular transfer request. This caution is particularly important when negotiating a plea agreement with a defendant.
It is not uncommon during plea negotiations for a foreign national to ask the USAO to guarantee that he will be transferred to his home country in return for pleading guilty. Because the discretion to grant or deny transfer requests is vested solely in the Attorney General or his designee (OIA), the USAO is without the power to make this promise either orally or in writing. The USAO, however, can represent that it will support the transfer application, that it will take no position on the request, or that it will not oppose the defendant’s transfer request. In drafting the plea agreement, it should be made clear that: (1) the USAO is distinct from OIA; (2) OIA has been delegated the sole authority to make the transfer decision; and (3) although the USAO has the authority to recommend or not oppose transfer, it has no power to promise or guarantee that the United States will approve transfer or that the prisoner is even eligible for transfer. Although it may not be possible for plea agreement language to be uniform in every case, the following language should fit most cases and should be used:
If the defendant is eligible and applies to transfer his sentence pursuant to the international prisoner transfer program, the [name of prosecuting office] agrees [to support, to not take a position, or to not oppose] the defendant’s transfer application. Defendant acknowledges and understands, however, that the transfer decision rests in the sole discretion of the Office of International Affairs (OIA) of the Criminal Division of the United States Department of Justice and that the position of the [name of prosecuting office] is neither binding nor determinative of the positions of other federal agencies or on the final transfer decision of OIA. Defendant further understands that in addition to OIA, federal law and the underlying transfer treaties require that the foreign government must also approve the transfer.
When evaluating whether to include a prisoner transfer provision in the plea agreement, the USAO must remember one of the main objectives of transfer is to further the rehabilitation of the prisoner. The likelihood of this goal being realized is greatest when a significant portion of the sentence remains to be served, the prisoner has strong family, social and cultural ties with his home country and the prisoner does not have a significant criminal history. The USAO also needs to be aware that the prisoner transfer process is time consuming and involves numerous steps, many of which must be taken by offices other than the IPTU. In no situation should the USAO represent that the IPTU is able or will expedite any step of the transfer process. Finally, for a number of reasons, including the statutorily protected rights of victims, the United States may be unable to transfer a prisoner owing outstanding criminal restitution. A USAO considering inserting a prisoner transfer provision in a plea agreement is encouraged to consult with an attorney in the IPTU. If the decision is made to include a prisoner transfer provision in the plea agreement, the above language should be used. Should it be necessary to amend this language and these changes materially deviate from the above language, the USAO shall consult with the IPTU.
In the absence of exceptional circumstances, the Department strongly discourages the USAOs from asking an offender to waive his right to apply for transfer as a condition in the plea agreement. The United States has prisoner transfer treaty relationships with 81 countries. The treaties and the enabling federal statute set forth the eligibility requirements for transfer. Requiring an eligible prisoner to waive his right to apply for transfer has the potential for damaging our relationships with our international transfer partners and should be avoided unless there is a strong federal interest in doing so. Inclusion of such a provision in a plea agreement should not be done without first consulting with an IPTU attorney.
9-35.019 - Relationship of Prisoner Transfer to Extradition
International prisoner transfer is sometimes confused with extradition. Although OIA handles both procedures, the procedures relate to different stages of the criminal process. Extradition involves surrendering a person to a country where he is wanted for trial, sentencing or to complete a previously imposed sentence that the person has evaded. In extradition, the person need not be a national of the country to which he is surrendered. In contrast, prisoner transfer entails transferring a prisoner who has already been convicted and sentenced back to his home country, which assumes responsibility for administering the transferred sentence. While the two procedures are different, some cases may involve the use of both. An extradited person who is convicted in the United States and who is from a country with which the United States has a prisoner transfer relationship may be eligible to apply for transfer. Under similar circumstance, a U.S. national who is extradited to be tried abroad may apply to transfer back to the United States.
Occasionally the issue has arisen as to whether the United States can promise transfer in return for an offender agreeing not to oppose an extradition request. In most situations, OIA does not favor such agreements because they deprive OIA of its discretionary authority, are frequently inconsistent with the rehabilitative goal of transfer, and the possibility exists that there could be valid reasons to deny a transfer that will not be known at the time of extradition. If a USAO believes it has compelling reasons to link a promise of transfer with an extradition request, it shall consult with and receive OIA’s approval before making a transfer representation to the offender. Just as with representations of transfer in plea agreements, only OIA has the authority to make these promises on behalf of the United States. See 9-35-018 supra.
There are two narrow and very limited situations, however, in which extradition and prisoner transfer can be linked and these involve the countries of Israel and the Netherlands. Because these two countries do not normally extradite their own nationals for trial in another country, the United States has agreed, by treaty with Israel and by an exchange of diplomatic notes with the Netherlands, to permit the transfer of extradited nationals from these countries following conviction at trial, sentencing and processing of the transfer request. When such an extradition arises, the USAO must confer with OIA’s IPTU early in the proceeding to discuss the USAO’s role and responsibilities in the transfer process.
9-35.020 - AAG Memorandum Regarding the Transfer Program and the Role of the USAOs
In September 2018, AAG Benczkowski signed a memo to all USAOs and DOJ Litigating Components discussing the International Prisoner Transfer Program and the role of the Department prosecutors in the program. This letter which sets forth additional guidance and directives to federal prosecutors is available from the International Prisoner Transfer Unit.
September 4, 2018
TO: ALL UNITED STATES ATTORNEYS HEADS OF LITIGATING COMPONENTS
FROM: Brian A. Benczkowski, Assistant Attorney General
SUBJECT: International Prisoner Transfer Program
This memorandum is intended to ensure that all United States Attorneys' Offices (USAOs) and Department litigating components are knowledgeable about the International Prisoner Transfer Program and its significant role in federal law enforcement and international affairs. The Criminal Division appreciates the critical role your offices play in implementing the program, and seeks your continued participation and cooperation. Please distribute this memorandum to all of the Assistant United States Attorneys (AUSAs) and trial attorneys in your components. AUSAs and trial attorneys should note that effective September 2, 2018, the transfer program, which was previously part of the Office of Enforcement Operations (OEO), has been moved to the Office of International Affairs (OIA) in the Criminal Division.
- Background of the International Prisoner Transfer Program
In 1977, Congress enacted legislation authorizing the International Prisoner Transfer Program ('transfer program'). See 18 U.S.C. §§ 4100-4115. This legislation, together with subsequent treaties to which the United States is a party, permit the transfer of foreign prisoners from the United States back to their home countries to serve the time remaining on their sentences. The receiving country assumes responsibility for administering the transferred sentence. Americans convicted abroad are also eligible to participate in the transfer program and to have the United States administer the enforcement of their foreign sentences. Since negotiating its first transfer treaty with Mexico in 1977, the United States has established transfer treaty relationships with 81 countries, pursuant to 12 bilateral treaties and two multilateral conventions. In addition, all 50 states, Puerto Rico, Guam and the Northern Mariana Islands have enacted legislation permitting the transfer of state and territorial prisoners under the transfer program.
Congress vested the authority to administer the transfer program in the Attorney General. The Attorney General delegated this authority to the Assistant Attorney General (AAG) of the Criminal Division and the AAG in tum, re-delegated this authority to the Director, Deputy Directors and Associate Director of the International Prisoner Transfer Unit (IPTU) within OIA.
The IPTU is responsible for the day-to-day administration of the transfer program. When the transfer program began, more Americans sought transfer than foreign nationals but, with the abolishment of parole and the advent of the federal Sentencing Guidelines, foreign national applicants now constitute a majority of the total transfer applicant pool. Although the statistics vary by year, IPTU typically processes between 1200 to 1500 transfer applications each year. Most of these applications have been submitted by foreign nationals in federal prisons. Of these cases, more than 60 percent are from Mexican nationals.
Although 20 percent of the federal prison population is comprised of foreign nationals, less than 4 percent of them apply for transfer. Indeed, the majority of these prisoners, for various reasons, are simply not interested in being transferred or they are from countries which do not have transfer treaty relationships with the United States. Of the small percentage who apply for transfer, in recent years the United States has approved an average of approximately 36-41 percent for transfer. Unfortunately, a significant number of the foreign national applicants approved by the United States never transfer because the prisoner's home country either denies the transfer or because the transfer is impractical because too little time remains on the sentence. During the 2000-2017 period, the annual number of transfers ranged from a low of 101 to a high of 503.
- Treaty Requirements and Processing a Transfer Request
A prisoner transfer cannot occur unless the treaty and statutory conditions have been satisfied. The initial statutory requirement is that a transfer treaty must be in effect between the United States and the prisoner's home country. 18 U.S.C. §4100(a). Another essential requirement is that the sentencing country, the receiving country, and the prisoner must all consent to the transfer. Transfer is voluntary; a prisoner cannot be compelled to transfer. Additional requirements common to all treaties are: the prisoner must be a national of the receiving country; the sentence must be final, with no pending appeals or collateral attacks on the conviction or sentence; dual criminality must exist; and there must be a minimum amount of time (usually 6 months) remaining on the sentence at the time of application . Some treaties provide additional requirements. For example, the Mexican treaty does not permit the transfer of prisoners who are serving sentences for immigration offenses or who have become domiciliaries of the sentencing country.
Federal prisoners may apply to transfer once they have been sentenced and arrive at their designated prison. A prisoner's country may also make a request for the transfer. Once Bureau of Prisons (BOP) receives the transfer request, prison staff will prepare an application package, which, after Central Office review, is forwarded to the IPTU for consideration.
The IPTU collects additional pertinent information from various sources including the prosecutor, the responsible law enforcement agency, and Immigration and Customs Enforcement. It evaluates this information, together with the BOP application package, and prepares a memorandum making a recommendation to the Deputy Associate Director of the IPTU who makes the final IPTU recommendation. Thereafter, the OIA Director, a Deputy Director or Associate Director of the IPTU will make the final transfer decision. This decision is guided by the statutory and treaty requirements as well as DOJ guidelines that assist the review and ensure decisional consistency. Each case is evaluated on its particular facts and the decision whether to approve the transfer must be balanced with the other interests presented by the case.
- Role of Federal Prosecutors in the Transfer Process
- Areas of Involvement
There are five areas where a potential exists for a federal prosecutor to be involved in the transfer program. The first area is when the prosecutor is seeking the extradition to the United States of a foreign national and the country or foreign defendant requests a promise of prisoner transfer in exchange for agreeing to extradition. Although the United States has agreements with the Netherlands and Israel to guarantee the transfer of its citizens extradited from those countries, any promises of transfer for all other countries rest with OIA. Consequently, the USAO will need to consult with OIA when these issues arise. See USAM at 9-35.019.
The second area of involvement is in the negotiation of the plea agreement when the offender may ask the prosecutor to include a representation that he or she will support or not oppose a subsequent request for transfer. Any prosecutor presented with such a request should carefully consult the requirements and guidance provided in Part 9-35.018 of the USAM and if necessary consult with attorneys in the IPTU.
Next, federal prosecutors are involved in responding to inquiries from the IPTU about the prosecutor's views concerning the transfer request. Upon receiving the case for review, the IPTU analyst emails an inquiry to the prosecutor seeking information including the prosecutor's views as to whether a transfer should occur and whether there are any pending appeals or collateral attacks. This is perhaps the most important area in which the prosecutor paiiicipates in the transfer program. Although prosecutorial input may not always be determinative, it ,is a critical part of the information that the IPTU considers. It is a meaningful opportunity for the prosecutor to ale1i the IPTU to any factors that he or she believes weigh against the prisoner's transfer. The IPTU requests that this information be provided within 14 calendar days from the date the email was sent; unless an extension is requested, failure to respond is interpreted as the prosecutor not having an objection to the transfer.
The IPTU may also ask the USAO in the district where a federal or state prisoner is incarcerated to assist in procuring a writ of habeas corpus or order to produce the prisoner at a consent verification hearing. The statutorily mandated consent hearing is held before a U.S. federal magistrate and ensures that the prisoner understands the impact of the transfer and freely consents to the transfer.
Finally, in those situations where prisoner transfer is an issue that arises in the litigation of the case or that is included as an issue on appeal, federal prosecutors should consult with the IPTU. IPTU attorneys can assist by explaining the program and providing resources and arguments to address the issues that have been raised.
- Prosecutorial Input Regarding the Transfer Decision
Many prosecutors provide case-specific information in response to the IPTU's requests for their views on a prospective transfer, including information that the prisoner is a subject of another criminal investigation, is needed to testify, or has threatened the safety of a witness. We review and take seriously the legitimate law enforcement concerns raised by U.S. Attorney's offices, and in most instances well-articulated and supported concerns will cause IPTU to deny the transfer request.
More general concerns or opposition to the transfer program will often not cause IPTU to deny a transfer. For example, these issues may include the concern that the sentence served in the home country will be less than what would be served in the United States; a distrust of the integrity of the prison system in the foreign country; a general concern that the prisoner will return to the United States and commit a new crime; or a strong, personal belief that the prisoner should serve his sentence in the United States. Though understandable, non-case specific concerns such as these do not assist in the assessment of whether transfer is appropriate in a specific case.
Moreover, some of these general concerns about the transfer program are attributable to misunderstandings and misconceptions regarding the operation of the program. First, some prosecutors mistakenly believe that the prisoner will serve less time in custody or be released immediately if transferred to his home country. Receiving countries are required by the terms of the governing treaty to apply their own laws and procedures with regard to the execution of the sentence, including the availability of parole, good conduct time, and labor credits. Sometimes, especially with regard to Canada and European countries, this will result in the foreign national serving less time in prison than if he had remained in the United States. However, with respect to other countries, such as Mexico, this is often not the case. Most transferred Mexican nationals serve sentences that approximate the sentences they would have served had they remained in the United States. Indeed, most prisoners serve slightly more time in Mexico than they would have served in the United States because Mexico, unlike the United States, does not award the equivalent of good time credits to large categories of offenders, including drug traffickers. Similarly, Ecuador has informed the United States that they will enforce the U.S.-imposed term of all transferred sentences and, to date, the sentence administration information provided confirms this representation.
Even when a transferred prisoner may serve less time in prison, this result, standing alone, is not a sufficient reason to deny the transfer request. The United States and its treaty partners recognized at the time that they entered into these treaties that the administration of the sentence by the receiving country could result in the prisoner serving less prison time than if he had remained in the sentencing country. However, the United States and its treaty partners accepted this result in exchange for the ability to have their nationals returned. Experience has confirmed that many of the returning Americans serve less time in the United States than they would have served had they remained in the foreign country in which they were convicted. Because the United States is willing to accept this benefit for its citizens, it cannot equitably object to a transfer simply because a foreign national might experience a similar benefit.
Second, Department prosecutors occasionally express concern about the integrity of the foreign prison system. Although some problems may exist in some criminal justice system, there appears to be little information to substantiate the view that transferred prisoners are able to buy or negotiate a lesser sentence abroad.
Third, prosecutors occasionally express concern that transferred prisoners will return to the United States and commit new crimes. Although there is no guarantee against recidivism for any category of offender, experience suggests that the potential for a foreign national's return to the United States following completion of his transferred sentence can be greatly minimized by ensuring that removal orders are obtained from U.S. immigration authorities prior to transfer, and by limiting approvals to candidates with strong family ties to their home countries who have minimal or no prior criminal record. The IPTU provides quarterly inf01mation to ICE identifying the prisoners the United States has approved for transfer so that ICE can take steps to secure removal orders for these prisoners. Moreover, as a general rule, experience shows that offenders who are transferred to distant locales, especially to countries in Europe or Asia, are unlikely to reappear in the United States after they are released from confinement abroad.
The transfer of offenders serves an important law enforcement purpose. Unless transferred, foreign nationals who are convicted of a crime in the United States will be deported following the completion of their sentence. A deported offender will be released into the general population in the home country, usually without that country receiving any information about the prisoner's criminal conduct and without the power to monitor or control his activities in any way. By contrast, a transferred prisoner is placed within the custody and control of the home country, which also receives the details and official conclusions regarding the criminal conduct of the transferred prisoner. The transfer also ensures that the prisoner will have a criminal record in his home country.
It is also important to recognize that the treaty obligations of the United States and Department policy require that all requests for transfer receive fair consideration. The treaties governing the transfer of prisoners reflect a foreign policy determination by the United States that prisoner transfer should be available equally to foreign nationals incarcerated here and American nationals incarcerated abroad. Moreover, prisoner transfer serves to reduce prison overcrowding within U.S. facilities, to rehabilitate offenders, and to promote harmonious relations with countries whose cooperation may be necessary for other law enforcement purposes. Further, the United States' participation in prisoner transfer treaties with 81 countries allows the United States to bring back Americans who have been convicted abroad, some of whom are incarcerated under extremely difficult circumstances. Thus, a general policy of recommendation against transfer would be contrary to the purpose of the transfer treaties and inconsistent with important law enforcement and foreign policy interests of the United States.
Finally, the IPTU needs your assistance in one additional area. To ensure that transfer requests are processed in a timely manner, it is essential that the USAOs respond to IPTU inquiries within 14 business of receiving the IPTU request. After the expiration of this 14-day period, if the IPTU has not heard from your office with a response or an extension request, the IPTU attorney will assume that the prisoner has no pending appeals or collateral attacks and that your office takes no position on the transfer request. This policy is necessary to avoid unnecessary delays in processing transfer applications.
- Contact Information
For the International Prisoner Transfer Program to achieve its objectives and to function efficiently, it must have the cooperation and active participation of federal prosecutors. The IPTU looks forward to working cooperatively with your offices in the administration of the program and remains available to respond to any questions or concerns that you may have.
Inquiries about the program may be directed to Paula Wolff, Associate Director of the IPTU or to the IPTU attorney seeking your views on a transfer request. General information about the transfer program can be found on the IPTU website at: www.justice.gov/criminal-oia/iptu. Contact information for the IPTU is:
International Prisoner Transfer Program
Office of International Affairs/Criminal Division United States Department of Justice
1301 New York Avenue, NW, 101 h Floor Washington, DC 20530
Telephone: 202-514-3173; Fax: 202-514-9003
[updated January 2020]